FFRF battle over courtroom prayer lawsuit moves forward

January 22, 2018

A federal judge has ruled that the Freedom From Religion Foundation's lawsuit against a prayerful county justice of the peace in Texas can proceed.

Judge Ewing Werlein Jr. ruled late Friday that the plaintiffs could proceed in their case against Montgomery County and Montgomery County Justice of the Peace Wayne Mack.

FFRF, a national state/church watchdog, with several local plaintiffs, sued the county and Mack last March, when he refused to stop opening each of his court sessions with chaplain-led prayer.

Werlein noted that FFRF's allegations that Mack "has been engaging in the prayer practice at every court session for more than three years and has prominently and publicly announced it as the official policy of Precinct 1 are sufficient to state a claim against the County."

The county had argued Mack did not have the power to establish a policy for which the County itself could be held liable. FFRF and three individual plaintiffs argued that the prayer practice is so well-known and longstanding within the county that the County Commissioners Court bore responsibility for it.

FFRF Constitutional Attorney Sam Grover appeared at a hearing before the federal judge in Houston on behalf of FFRF and its co-plaintiffs earlier this month. There the judge issued an oral decision that attorneys from First Liberty Institute—a Christian rights advocacy organization—and Gibson Dunn, who represented Wayne Mack in his personal capacity, could not argue their motion in court. In his written ruling, Werlein formally dismissed their motions.

Werlein also rejected a request to file a "friend of the court" brief by Texas Attorney General Ken Paxton. The judge noted that Paxton's brief was "largely duplicative of arguments made in other briefs, and is therefore not particularly useful, it argues facts, [and] it strongly favors one side over the other," in addition to other reasons for denying the state's intervention.

"This is an important step forward in our case to return Judge Mack's courtroom to a state of judicial neutrality," noted FFRF Co-President Dan Barker. "It's unprecedented for a judge, who is meant to be a neutral arbiter of the law, to establish a religious ritual in a court of law."

Werlein ruled that one of FFRF's three local plaintiffs, "Jane Noe," does not have standing to pursue injunctive relief, because of her expected minimal contact with the courtroom. The two remaining individual plaintiffs are both attorneys who argue cases within the Precinct 1 court. FFRF and they are being represented by Grover, with FFRF Associate Attorney Elizabeth Cavell serving as co-counsel. Attorney Patrick Luff of the Luff Law Firm in San Antonio, is serving as local counsel.

The case, Freedom From Religion Foundation et al. v. Judge Wayne Mack and Montgomery County, Texas, case number 4:17-cv-881, is being heard in the U.S. District Court for the Southern District of Texas, Houston Division.

The Freedom From Religion Foundation, based in Madison, Wis., a 501(c)(3) nonprofit educational charity, is the nation's largest association of freethinkers (atheists, agnostics), and has been working since 1978 to keep religion and government separate.